JOHN PAUCHAY APPELLANT - v. -, 2003 SKQB 141

2003 SKQB 141 Q.B. A.D. 20 02 No. 22 J.C. W. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF WYNYARD BETWEEN: JOHN PAUCHAY APPELLANT - and - HER MAJESTY THE QUEEN RESPONDENT Stuart J. Eisner for the appellant Daryl B. Bode for the Crown JUDGMENT BAYNTON J. March 25, 2003 [ 1 ] The appellant appeals his convictions on June 5, 2002 for impaired driving, driving while suspended and breach of probation pursuant to ss. 253 (a), 255(1) , 259(4) and 733.1(1) of the Criminal Code . He also appeals his sentence of one year incarceration.

The appeal against conviction is based primarily on the ground that the trial judge erred in refusing to expunge the appellant’s guilty pleas to the charges. The appeal against sentence is based on the ground that it should be reduced to take into account the fact that the accused entered his guilty pleas on the understanding that the Crown was only seeking a sentence of four months incarceration.

Issue [ 2 ] The appeals raise a rather unique issue that has not apparently been the subject of prior judicial determination. Can a trial judge significantly increase a sentence agreed to by the Crown and defence where that judge has refused to expunge a guilty plea made on the basis of that sentencing agreement? [ 3 ] I have concluded that absent exceptional circumstances, the judge must either expunge the plea or uphold in principle the sentencing agreement. Unfortunately, the facts of the case before me are somewhat more convoluted than those assumed by the issue as posed.

Background Facts [ 4 ] The accused alleges he has no memory of being in an automobile accident on the Yellow Quill Reserve on December 6, 2001. He was apprehended nearby at his home and was observed to have numerous cuts and contusions on his face and scalp. He was taken to the hospital by ambulance. A blood sample was obtained with the consent of the accused and it indicated that his blood alcohol level was well over the legal limit.

Defence counsel for the accused, in his application to expunge the guilty pleas, advised the court that the disclosure information given him by the Crown indicated that the accused was seen at or near the motor vehicle accident and that photographs showed a hole in the windshield on the passenger side of the truck allegedly driven by the accused but which was owned by a third party.

Defence counsel called a witness to testify as to the location of the hole in the windshield but the trial judge upheld the objection of the Crown to the admission of this evidence. [ 5 ] The accused was lodged in the cells and was found to be prohibited from driving due to an impaired driving and driving while disqualified conviction on August 2, 2000. He has a lengthy record of similar previous offences. He was on probation at the time he was arrested as a result of an assault conviction on April 1, 2000.

He was accordingly charged with the three offences that are the subject of this appeal including a driving with a blood alcohol level in excess of the legal limit offence. That charge was subsequently stayed. He was taken before a Justice of the Peace on December 7, 2001 and was remanded in custody without plea to Melfort on December 10, 2001. [ 6 ] On December 10, 2001, an experienced defence counsel interviewed the accused when he was brought to court to answer to the charges. Counsel reviewed the Crown disclosure with the accused.

Both the accused and his counsel were well aware that the Crown might have difficulty in proving that the accused was driving the vehicle involved in the accident. Although there was circumstantial evidence of driving and care and control in that the accused was observed near the vehicle, there was no direct evidence of driving.

Additionally, the circumstantial evidence tended to indicate that if the accused had been in the vehicle, he was thrown through the windshield on the passenger side. [ 7 ] The accused was primarily concerned in getting released from custody so that he could attend to some cows in his care. Defence counsel was advised by Crown counsel that should the accused wish to plead guilty, the Crown would take the position that a sentence of four months should be imposed collectively on all charges and would also agree to the immediate release of the accused and the adjournment of sentencing to a later date.

When the accused was informed of the Crown’s position, he instructed his counsel to enter guilty pleas to the charges. His counsel was of the view that this was a good resolution from the accused’s perspective because if he was found guilty he would be sentenced to a lot more time than four months. Defence counsel made certain that the accused understood that by entering guilty pleas to the charges he was acknowledging his guilt respecting each of them.

Defence counsel prudently prepared and had the accused give him written instructions to enter the guilty pleas. [ 8 ] The written instructions were filed as an exhibit in the application to expunge the pleas heard by the trial judge. The document was “read in” at the hearing as follows: Q. . . .Perhaps maybe I’ll just get you to read it in, although I know reading other lawyers’ writing is actually easier for other lawyers, but reading your own might be the easiest. A. “I, John Pauchay, wish to plead guilty to the .08/impaired and drive while disqualified from December 6, 2001.

I’m taking the position that I’m guilty of this offence. I agree to a sentence of four months in jail to be imposed on December the 19th, 2001 at Rose Valley.” And then he signed it.

[Transcript, p. 17, ll. 6-16] [ 9 ] Upon the entry of the pleas, the Crown consented to the release of the accused from custody and the sentencing hearing was set for December 19, 2001 at Rose Valley. On that date, the accused’s counsel withdrew and the matter was adjourned for sentencing to January 16, 2002 to enable the accused to retain another lawyer.

A further adjournment was granted to February 6, 2002 when the accused’s application to expunge his pleas was heard. [ 10 ] The accused was called to testify about his lack of recollection of driving the vehicle in question but the trial judge precluded this line of questioning on the basis of the objections raised by the Crown. The accused testified that after his arrest he had been detained in the cells at Rose Valley over the weekend. His primary motivation for entering the guilty pleas was to obtain his release to look after his 15 head of cattle.

He understood that he would be held on remand if he did not enter the guilty pleas and obtain an adjournment of the sentencing hearing. He acknowledged his prior convictions and the fact that he had previously entered guilty pleas and understood what it meant to do so. He acknowledged that he would have to go to jail as a consequence of his guilty pleas but he understood that his jail sentence would be four months only in duration. [ 11 ] The learned trial judge reserved her decision on the application to expunge the guilty pleas and adjourned the matter to March 20, 2002.

It was adjourned again to June 5, 2002 when she rendered her detailed decision that sets out her findings of fact and conclusions respecting the applicable case law. She dismissed the accused’s application to expunge his pleas and adjourned the matter for sentencing to July 3, 2002.

The hearing was again adjourned to July 17, 2002 when sentencing submissions were made by counsel. [ 12 ] The accused was sentenced, primarily on the basis of his extensive criminal record of impaired driving and driving while disqualified convictions, to twelve months concurrent on the driving offences and to five days concurrent on the breach of probation offence. The surcharge was waived. An order prohibiting the accused from driving for a period of two years was also made under s. 259 of the Criminal Code and his ability to secure a driver’s license was suspended.

Analysis [ 13 ] It is trite law that an appeal court has the jurisdiction to expunge a guilty plea. But it is reluctant to do so unless a miscarriage of justice would otherwise ensue or where there are “valid grounds” for doing so. Adgey v. The Queen , [1975] S.C.R. 426; R. v. Arcand (2000), 2000 SKCA 60 (CanLII) , 199 Sask. R. 4 (C.A.) para. 3 ; R.E. Salhany, Canadian Criminal Procedure , 6th ed. (Toronto: Canada Law Book Inc., 2002) at p. 6-55, para. 6.1900. The trial judge has the discretion to expunge a guilty plea.

But the onus is on the accused to prove that his plea was not voluntary, unequivocal or informed. R. v. Oxby, 2000 SKCA 129 (CanLII) , [2000] S.J. No. 667 (Sask. C.A.) para. 15 ; R. v. T.(R.) (1993), 1992 CanLII 2834 (ON CA) , 17 C.R. (4th) 247 (Ont. C.A.) p. 5 of 13. Where the guilty plea was entered with the benefit of counsel, the onus on the applicant to establish that it is invalid is particularly difficult. R. v. Clermont (1996), 1996 CanLII 10244 (NS CA) , 150 N.S.R. (2d) 264 (N.S. C.A.) ; R. v. Musey (2001), 2001 SKQB 240 (CanLII) , 209 Sask. R. 163 (Q.B.) .

The offer of a “plea bargain” is a factor that may well impinge on the issue of whether the plea was voluntary. R. v. T.(R.), supra . But no case was referred to me in which a guilty plea was expunged on this basis alone. R. v. Rubenstein (1988), 1987 CanLII 2834 (ON CA) , 41 C.C.C. (3d) 91 (Ont. C.A.) , leave to appeal Supreme Court of Canada refused (1988), 87 N.R. 77 n, is to the contrary. [ 14 ] I find no fault with the merits of the decision made by the learned trial judge in dismissing the accused’s application to expunge his guilty pleas.

Her findings of fact are supported by the evidence and she correctly applied the case law to those facts. At the time she heard and determined the issue, s. 1(1.1) of the Criminal Law Amendment Act, 2001 that amended s. 606 of the Criminal Code and which basically codifies the case law on this issue, had not as yet been proclaimed. It reflects recommendation #55 of the Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure and Resolution Discussions (“the Martin Report”). Although it pertains to the taking of a plea, it is relevant as well to an application to expunge a plea.

Section 606(1.1) and (1.2) provide as follows: 606

(1.1) A court may accept a plea of guilty only if it is satisfied that the accused: (

a) is making the plea voluntarily; and (

b) understands

(

i) that the plea is an admission of the essential elements of the offence, (ii) the nature and consequences of the plea, and (iii) that the court is not bound by any agreement made between the accused and the prosecutor.

(1.2) The failure of the court to fully inquire whether the conditions set out in subsection (1.1) are met does not affect the validity of the plea. [ 15 ] Although I can find no specific reference in the evidence adduced at the hearing to establish that the accused was told that the court is not bound by any agreement between the prosecutor and the accused, the accused was represented by experienced and competent counsel who would have undoubtedly so advised the accused. Nor was this made an issue on the appeal.

In any event, it is obvious from her reasons that the trial judge was satisfied of all these conditions now required by the legislation. [ 16 ] Nor would I have found any fault with the merits of the sentence imposed on the accused by the learned trial judge in similar circumstances absent the “plea bargain” arrangements that had been made between the Crown and counsel for the accused.

But in my respectful view, in the peculiar circumstances of this case, the learned trial judge erred in imposing the sentence she did on the accused. [ 17 ] In this particular case, the learned trial judge heard more than the sentencing submission. She also heard the application to expunge the guilty pleas. In so doing she heard the testimony of the accused and the testimony of his former counsel respecting the basis on which the guilty pleas were entered.

She was accordingly well informed not only of the particulars of the tentative agreement made between the Crown and defence counsel but as well, of the understanding of the accused respecting the consequences of entering the guilty pleas and his reasons for so doing. Although these matters were taken into consideration in declining the accused’s application to expunge his pleas and in convicting him, they were apparently not taken into consideration in sentencing him.

The failure to do so has resulted in a disposition that not only has the potential of bringing the administration of justice into disrepute but that also jeopardizes the well established practice of “plea bargaining”, a practice that in the main benefits the public as well as persons accused of crimes. [ 18 ] In my respectful view, once the learned trial judge was apprised of the “plea bargain”, she had the obligation to seriously consider it even though she was not bound by it.

Considering the weaknesses in the Crown’s case, the arrangement initially proposed by Crown counsel and accepted by the accused was a reasonable resolution in the circumstances. It was obviously better from the Crown’s perspective to get the accused off the road for an extended term than risk his return to it at an earlier date. Even if the “plea bargain” was ignored, the fact that the accused was being sentenced on the basis of guilty pleas was a well established mitigating factor that should have been taken into account pursuant to s. 718.2 (

a) of the Criminal Code in determining the length of the sentence. There is nothing in the sentencing reasons to indicate that any mitigating factors were considered. The trial judge made her decision almost exclusively on the basis of the criminal record of the accused and in doing so, failed to give due consideration to the peculiar circumstances of the case before her. [ 19 ] Although the court is not bound by a “plea bargain”, in certain circumstances the rejection of a joint submission has been held to be a reversible error in sentencing.

This is so despite the limited basis for intervention by an appeal court on sentence appeals by virtue of s. 717(1) of the Criminal Code and cases such as R. v. Shropshire , 1995 CanLII 47 (SCC) , [1995] 4 S.C.R. 227 and R. v. M. (C.A.) , 1996 CanLII 230 (SCC) , [1996] 1 S.C.R. 500 . I will cite two cases in which the appeal court overturned the rejection of a joint submission and substituted its own sentence for one equivalent to the joint submission. [ 20 ] The first case is R. v. G.W.C. , 2000 ABCA 333 (CanLII) , [2001] 5 W.W.R. 230 (Alta. C.A.) .

Berger J.A. reviews several appellate authorities in which the rejection of a joint submission was found to be in error. At paras. 17 and 18 he observes: The obligation of a trial judge to give serious consideration to a joint sentencing submission stems from an attempt to maintain a proper balance between respect for the plea bargain and the sentencing court’s role in the administration of justice.

The certainty that is required to induce accused persons to waive their rights to a trial can only be achieved in an atmosphere where the courts do not lightly interfere with a negotiated disposition that falls within or is very close to the appropriate range for a given offence. “The bargaining process is undermined if the resulting compromise recommendation is too readily rejected by the sentencing judge.” R. v. Pashe (1995), 1995 CanLII 6256 (MB CA) , 100 Man. R. (2d) 61 (Man. C.A.) at para. 11 .

Joint submissions, however, should be accepted by the trial judge unless they are unfit: R. v. Sinclair , [1996] A.J. No. 464 at para. 4 (Alta. C.A.) , or unreasonable: R. v. Hudson , [1995] A.J. No 797 at para. 1 (Alta. C.A.) . In R. v. Dorsey (1999), 1999 CanLII 3759 (ON CA) , 123 O.A.C. 342 (Ont.

C.A.) , the Ontario Court of Appeal held at p. 345 that “a joint submission should be departed from only where the trial judge considers the joint submission to be contrary to the public interest and, . . . if accepted, would bring the administration of justice into disrepute.” That view accords with the position of the Manitoba Court of Appeal in R. v. Pashe , supra , at para. 12 , that “while a sentencing judge has a overriding discretion to reject a joint recommendation, ‘ there must be good reason to do so , particularly . . . where the joint recommendation is made by experienced counsel’.” [emphasis added].

It seems to me that a trial judge who fails to inquire into the circumstances underlying a joint sentencing submission would be hard pressed, indeed, to determine whether there was “good reason” to reject that joint submission on the basis that it was contrary to the public interest and, if accepted, would bring the administration of justice into disrepute. [Emphasis in original] [ 21 ] The second case is R. v. Webster (2001), 2001 SKCA 72 (CanLII) , 207 Sask. R. 257 , a decision of our Court of Appeal that quoted with approval the passage reproduced above from R. v.

G.W.C. , supra, Cameron J.A. at para. 6 observes: . . . As the Attorney General sees the matter, the departure was significant, the reasons for departure were neither consistent nor compelling, and the result is apt to be generally disruptive of the administration of justice. [ 22 ] I realize that the accused attempted to “renege” on his undertaking by bringing an application to expunge his pleas. Had he been successful and then convicted after a trial, neither the expunged guilty pleas nor the “plea bargain” could be relied upon by him as a mitigating factor in sentencing.

But his pleas were not expunged and he was sentenced on the basis of them. [ 23 ] I also realize that sentencing did not proceed on the basis of a joint submission so that the decision of the learned trial judge was not contrary to it. But she was well aware of the bargain that had been made and of the undertaking given by Crown counsel respecting the position the Crown would take on the sentencing hearing.

In my view, there is a higher onus on a judge who denies an application to expunge a guilty plea to seriously consider any “plea bargain” involved than in the usual case where a joint submission is made without any attempt on the part of the accused to withdraw from his or her guilty plea. [ 24 ] Unfortunately the judge received little assistance from the Crown at the sentencing hearing. Counsel for the Crown did not have his file when the matter came on and simply took the position that a period of incarceration should be imposed.

Although this was not strictly inconsistent with the previous undertaking given, he did not remind the judge of the sentencing position communicated by the Crown to the accused and upon which the guilty pleas were obtained. In failing to do so, he breached the spirit of the undertaking that was previously given.

The fact it may have been inadvertent is of no comfort to the accused who received a sentence that was three times the length of incarceration agreed to by the Crown in exchange for the guilty pleas. [ 25 ] Immediately after his sentencing on July 17, 2002, with the consent of the Crown, the accused was released from custody pending his appeals on his own undertaking. The conditions of his undertaking are that he remain in the province, report each week to the police, advise of any change of address and refrain from possessing or consuming any alcoholic beverages.

The terms of the consent release order granted by Foley J. are that the accused keep the peace and be of good behaviour, that he refrain from the use of alcohol or non-prescription drugs, that he refrain from entering a place where the primary function is the sale or consumption of alcohol and that he submit a sample of breath into a screening device or instrument at the request of a peace officer. [ 26 ] The question remains as to what sentence should be substituted for the term of incarceration imposed by the trial judge.

As I observed previously, in the peculiar circumstances of this case, a four-month period of incarceration as initially agreed to by the Crown and the accused is appropriate. But in view of the time that has elapsed and the fact that there is no indication that the appellant has been in breach of any of the conditions of his release, a more appropriate sentence would be a conditional sentence of a term equivalent in length to the custodial term imposed by the trial judge. I am satisfied, in accordance with s. 742.1 (

b) of the Criminal Code , that the serving of this sentence by the accused in the community will not endanger the safety of the community and will be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code . The one-year term will provide the community with more protection than a four-month term even though the longer term does not require the accused to be in custody. Conclusion

[ 27 ] The appeal against the convictions is dismissed. The appeal of the sentence is allowed in part by the substitution of a conditional sentence of 12 months for the sentence of incarceration for 12 months previously ordered. The two year driving prohibition previously imposed will commence at the conclusion of the conditional sentence and all other aspects of the sentence imposed by the learned trial judge will apply. The terms of the conditional sentence shall include the compulsory conditions set out in s. 742.3(1) and the optional condition set out in s. 742.3(2) (

a) of the Criminal Code . The following terms shall also apply to the accused during the term of his conditional sentence: (

a) He shall perform 100 hours of community service; (

b) He shall refrain from entering any place or establishment where the primary function is the sale or consumption of beverage alcohol as defined in The Alcohol and Gaming Regulations Act, 1997 , S.S. 1997, c. A-18.011 ; (

c) He shall provide a sample of his breath into an approved screening device or instrument to any peace officer upon the request of that officer; (

d) He shall pursue and complete any alcohol addiction counselling or treatment as may be prescribed by the supervisor; (

e) He shall remain within his residence and yard between the hours of 10:00 p.m. and 6:00 a.m. except during the times and within the terms of any written permission that may be granted to the accused by the supervisor. J.